How Can I Break My Lease Without Losing My Deposit?

You may find yourself in a position of needing to move out of an apartment before the lease expires. If the reason for leaving is caused by the landlord´s noncompliance with the lease or failure to repair, certain steps may be taken which are described in the sections on repairs and landlord´s legal obligations. However, if you have personal reasons for needing to vacate before the term expires, a different plan of action is required.

You may consider three alternatives:

(1) Try to sublet the apartment with the landlord´s written approval

(2) Negotiate a written release from the lease agreement

(3) Give the landlord written notice of the date you are vacating as soon as possible and ask that he or she make every attempt to mitigate damages by arranging to rent the apartment to a new tenant after your moving out date.

Sublet Your Apartment. The problem with subletting is that you remain responsible to the landlord if the subletting tenants fail to pay rent or damage the premises. In addition, you may be taking on some landlord-type responsibilities in regard to the subletting tenants. Subletting arrangements are the most satisfactory when you are well acquainted with the subletting tenants and can trust that they will act responsibly. You may also secure some protection by working out a contract with the subtenants covering the terms of the sublease. If possible, it is best if you can get the landlord and the subletting tenants to enter into a new lease between themselves, releasing you from responsibility.

Negotiate a Release. It may be possible to negotiate a settlement or a mutual rescission of the lease agreement when you want to move before the expiration of the term. You may have to offer something in return for being released from the lease. Any agreement such as this must be in writing and have the notarized signatures of both parties. It is best to have an attorney draft the agreement.

Give Notice and Move. The third alternative of giving the landlord notice that you are vacating also has drawbacks. The landlord will want to deduct the cost of advertising from your deposit. In addition, even though the landlord is required by the Nebraska Landlord Tenant Act to mitigate or lessen the damages by trying to rent the apartment to new tenants (§76-1405), there is no guarantee that the landlord will zealously pursue the fulfillment of this duty.

If you have to move out before the lease expires you should give as much notice as possible, at least 30 days prior to the date rent is due. The notice should be in writing, dated and you should keep a photocopy.

At best, the landlord will find new tenants who want to move in the day after you are moving out and you will only have to pay advertising costs. Even though you have broken the lease, the landlord has not suffered any loss of rent or any damage beyond advertising costs.

It is illegal for a landlord to receive "double rent" or to collect rent for the same apartment during the same time period from different tenants. Note: You do not automatically lose your damage deposit because you break the lease, even though the landlord may insist on it. Damage deposits are to be used only to cover the cost of damages and unpaid past due rent.

At worst, the landlord will make a real effort but will not be able to rent the apartment to new tenants. In that case, you will likely be responsible for rent until the end of the term plus advertising costs. Even in this case, a landlord cannot sue for rent until it "accrues" or becomes due at the beginning of each month.

When breaking a lease is unavoidable, the worst thing you can do is ignore the problem and procrastinate. With adequate notice and the cooperation of the landlord, you might be able to break a lease at little expense.